The Concept and Classification of Domestic Violence in Ningbo
When it comes to domestic violence, many people first think of beating, but the scope of domestic violence in the legal sense is wider, and it also covers frequent abuse, intimidation and other mental violations, and even cold hunger, frequent insults, threats, stalking, harassment and other forms. It has been clearly included in the judicial interpretation. To find out "what is domestic violence and what types" directly determines whether the victim can claim compensation for divorce damages, apply for a personal safety protection order, and be in a favorable position in property division and child support. One sentence conclusion: Domestic violence is a physical and mental violation committed by family members by beating, binding, mutilating, restricting personal freedom, and frequent abuse and intimidation. It can be divided into physical violence and mental violence based on the behavior method. Violence, sexual violence and economic control and other types, based on the subject relationship as the standard, violence committed between people living together other than family members is also implemented with reference to the Anti-Domestic Violence Law.
The legal origin of the concept of 1.: the evolution from "consequence element" to "behavior standard".
Before the promulgation of the the People's Republic of China Anti-Domestic Violence Law (passed on December 27, 2015 and implemented on March 1, 2016), the original "Interpretation (I) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Marriage Law" defined domestic violence as "The perpetrator uses beating, binding, maiming, forcibly restricting personal freedom or other means to cause certain physical and mental harm to his family members". This definition takes "causing certain harm consequences" as an essential element. In judicial practice, the scale is too strict, and many cases are difficult to be identified as domestic violence because the consequences are not obvious, which is not conducive to the protection of victims.
Article 2 of the Anti-Domestic Violence Law turns to define "behavior" as the basis: "The term" domestic violence "in this law refers to beatings, binding, mutilation, restriction of personal freedom, and frequent verbal abuse, intimidation, etc. The physical and mental violations committed. "The Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Section of the the People's Republic of China Civil Code adopted on December 25, 2020 deleted the definition of domestic violence in the original judicial interpretation, no longer took" causing certain harm consequences "as the element, and adjusted" persistent and frequent domestic violence constitutes abuse "to" can be identified as abuse ", further loosening the threshold for the identification of domestic violence. The Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in Handling Cases of Personal Safety Protection Orders (Fa Shi [2022] No. 17), which came into effect on August 1, 2022, also expanded the forms of domestic violence by enumerating, clarifying that cold hunger and frequent insults, slanders, threats, stalking, and harassment are all domestic violence.
Classification of 2. by Behavior: Key Points of Identification of Four Categories of Domestic Violence
first, physical violence. Refers to beating, binding, mutilation, restriction of personal freedom and other direct acts of physical violations. The law no longer requires such acts to be regular, nor does it require that specific injurious consequences must be met-a more serious beating or unlawful detention may constitute. However, in practice, the "consequence" is still an important consideration: a slap, daily friction between husband and wife and other acts of significantly minor circumstances, usually difficult to be identified as domestic violence in the legal sense, more likely to be used as evidence of emotional breakdown or other disputes. The judgment standard should grasp the "severity and continuity of the violation": the boundary between minor physical conflict and violence to the degree of regulation, the court will combine the number, intensity, whether to seek medical treatment, whether to call the police and so on.
Second, mental violence. Refers to the mental abuse of the victim by means of frequent abuse, intimidation, etc. Unlike physical violence, the law emphasizes the "recurrent" element of mental violence, and occasional spat and scolding generally do not constitute it. Fa Shi [2022] No. 17 extends the extension of mental violence to frozen hunger and regular insults, slander, threats, stalking, harassment and other forms. Tracking and harassment can be included even if there is no physical contact, as long as regular mental oppression is formed. Negative mental abuse may also be constituted, such as non-treatment after random injury, starvation and freezing of the victim, long-term prohibition of the victim to go home, etc., which are often identified in practice in combination with abuse and abandonment.
Third, sexual violence. The anti-domestic violence law does not directly use the expression "sexual violence", but sexual assault against the will of the spouse, indecent insults committed by violence or coercion within the marriage can be investigated through physical violence, mental violence provisions and relevant criminal and public security norms; when the victim claims compensation for domestic violence damages in divorce proceedings, the circumstances of sexual violence can be used as an aggravating factor in the seriousness of the circumstances. In practice, such evidence is highly concealed, and alarm records, medical examinations, and mental damage assessment materials are particularly important.
Fourth, economic control. Refers to the act of mental control by controlling or depriving family members of the right to control property and depriving them of basic living security, such as forcibly collecting wage cards, cutting off living expenses, and prohibiting victims from working. The anti-domestic violence law is not explicitly enumerated, but economic control is often intertwined with cold hunger and mental abuse, forming one of the manifestations of domestic violence or abuse, which can be advocated in practice in the context of specific circumstances.
3. classification by subject relationship: between family members and "people living together"
article 2 of the Anti-Domestic Violence Law is aimed at "family members", I .e. spouses, parents, children and other close relatives living together (Article 1045 of the Civil Code defines the scope of relatives as spouses, blood relatives and in-laws). Article 43 The victims of domestic violence, their legal representatives and close relatives shall have the right to safeguard their rights in accordance with the law. Of greater concern is article 37 of the Act: "Acts of violence committed between persons living together other than family members shall be subject to the provisions of this Act. "Accordingly, violence between cohabiting partners, pseudo-family members who are in a custodial relationship but are not registered may also be reported to the police, filed for a personal security order, and used as evidence of fault in divorce or dissection proceedings. In addition, excessive discipline of minor children by parents beyond the scope of reasonable discipline and causing physical or mental harm may also constitute domestic violence or abuse.
Boundaries between 4. and Related Concepts: Domestic Violence, Abuse, and General Family Conflict
one is the relationship between domestic violence and abuse. Abuse is usually manifested as persistent and frequent domestic violence. Article 1 of the Civil Code's Marriage and Family Interpretation (I) clearly states that "persistent and frequent domestic violence can be identified as abuse", and domestic violence may also constitute a criminal offence at this level (crime of abuse, crime of intentional injury). The second is the relationship between domestic violence and general family conflict. Couples quarrel over trivial matters, occasional pushing and shoving, etc., which do not cause actual infringement and are not continuous, are generally not recognized as domestic violence, but if accompanied by police, injuries, repeated and other circumstances, they should be strictly controlled. The third is the status of "consequences. The current definition no longer takes the consequences of injury as a constituent element, but the consequences of injury (injury identification, medical records, mental damage assessment) are the core evidence to prove the facts of domestic violence and claim damages, and still play an important role in practice.
The Legal Consequences and Relief Path of 5. Identified Domestic Violence
once domestic violence is identified, it will have a series of legal consequences: first, Article 1079 of the Civil Code lists the implementation of domestic violence as a legal situation in which mediation is invalid and divorce should be granted; Second, Article 1091 of the Civil Code stipulates that if domestic violence leads to divorce, the no-fault party has the right to claim damages (including material damage and mental damage); Third, when dividing property through divorce, the principle of taking care of children's rights and women's rights and no fault shall be followed in Article 1087 of the civil code, the perpetrator may be given less property; Fourth, in the struggle for custody of children, Article 14 of the (II) of the Supreme People's Court on the Interpretation of the Marriage and Family Code of the the People's Republic of China Civil Code clearly states that if one party committed domestic violence, the court shall give priority to the direct support of the other party according to the principle of being most beneficial to minor children. Fifth, the victim may apply for a personal safety protection order in accordance with Articles 23 to 32 of the, the ban includes a ban on domestic violence, harassment, tracking and contact, and an order to move out of the residence. Violation of the protection order will face reprimand, fines, detention and even criminal responsibility.
6. common mistakes
myth 1: Only injured people count as domestic violence. The current definition is based on violations. Mental violence, restrictions on personal freedom, frequent verbal abuse and intimidation, as well as the expanded judicial interpretation of frozen hunger, insults, threats, stalking, harassment and other forms may be constituted, and no obvious trauma is required.
Myth 2: Husband and wife quarrel is considered domestic violence, which can be divorced and claimed. Occasional and minor physical conflicts are usually difficult to identify; only if they constitute domestic violence in the legal sense can they trigger the legal consequences such as divorce and damages.
Misunderstanding three: mental violence must be "unbearable, serious consequences" to advocate. Mental violence takes "regular" as the key element, and needs evidence of frequency and continuity (recording, chat record, alarm record), rather than waiting for mental breakdown to safeguard rights.
Misunderstanding 4: The law cannot control things between cohabiting male and female friends. Article 37 of the Anti-domestic violence Law makes it clear that violence committed between people living together other than family members can be carried out by reference, and cohabitation violence can also be reported to the police and a protection order can be applied.
7. Focus of Proof and Combination of Rights Protection: Treatment Path of Different Types of Domestic Violence
different types of domestic violence, the focus of proof and the combination of relief are different. Physical violence takes "alarm records + medical records + injury photos" as the core, and a violent incident can form a closed loop through 110 police records, warning letters and medical records. Mental violence takes "regular" as an essential element and requires multiple records on the time axis-threatening short messages, threatening phone recordings, track records of harassment (community monitoring, entrance guard records, relatives and friends witnessing), screenshots and original carriers of abusive content, use "frequency and continuity" to prove frequent; Sexual violence and hidden evidence of infringement are hidden, relying on the investigation materials of the public security organs after the alarm, the inspection records and psychological assessment of medical institutions, and applying for injury identification and mental damage assessment when necessary. Economic control is presented in the form of money flow, records of wage card collection and testimony of deprivation of basic living expenses. It is often intertwined with cold hunger and abuse and can be claimed together.
In the combination of rights protection, the most effective is the "public power procedure first": alarm, warning or administrative punishment, application for personal safety protection order, divorce litigation claims for damages and property tilt. Every public power procedure will form a written record, which will fix the facts of domestic violence in an interlocking manner. The ruling of the protection order itself can be directly used as evidence to determine domestic violence in divorce proceedings. The lower standard of proof of Article 20 of the Anti-Domestic Violence Law and the lower standard of proof of Article 17 of the Law, so that the path of "evidence first, litigation later" has the lowest cost and the greatest chance of winning. Victims can seek shelter from women's federations, civil affairs and legal aid at the same time, and Ningbo parties can consult local legal aid agencies.
8. FAQ
is a slap a domestic violence?
It is usually difficult to identify domestic violence based on a single minor physical conflict. Although the law does not require the consequences of injury, in practice it will be judged comprehensively in combination with the number of violence, intensity, whether to cause injury, whether to call the police for medical treatment and other circumstances. If it occurs many times, causes injury or is accompanied by mental infringement, it may be constituted.
Is cold violence and ignoring domestic violence?
Simple cold war and emotional alienation do not belong to the forms of domestic violence listed in the law. However, active violations such as cold hunger, frequent insults, threats, stalking and harassment constitute domestic violence. If economic control is intertwined with other abuses, it can be determined in combination with the abuse situation.
Can I apply for a personal safety protection order if I don't divorce after being raped?
You can. According to Article 23 of the Anti-Domestic Violence Law and Law Interpretation No. 17 [2022], the applicant's personal safety protection order is not conditional on filing a civil lawsuit such as divorce, and those who suffer from domestic violence or face real danger can apply.
What kind of compensation can victims of domestic violence get in the event of divorce?
Compensation for divorce damages (material and moral damages) may be claimed and favored in the division of property in accordance with the principle of taking care of the no-fault party.